F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 7 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM H. WANLESS, JR.,
Petitioner-Appellant,
No. 99-6452
v. (W. District of Oklahoma)
(D.C. No. 99-CV-8-L)
STEPHEN W. KAISER,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This case is before the court on William Wanless’ pro se request for a
certificate of appealability (“COA”). Wanless seeks a COA so that he can appeal
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C. §
2253(c)(1)(a) (providing that “an appeal may not be taken to the court of appeals
from . . . the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court” unless the petitioner
first obtains a COA). The district court dismissed Wanless’ petition pursuant to
the one-year period of limitations set forth in 28 U.S.C. § 2244(d)(1). In so
doing, the district court noted that even generously applying the tolling provisions
set forth in § 2244(d)(2), Wanless’ petition was filed seventeen months after the
limitations period had expired. The district court also rejected Wanless’ request
that the limitations period be equitably tolled, noting that none of the
circumstances identified by Wanless as excusing his tardiness were sufficiently
extraordinary to justify application of that doctrine.
On appeal, Wanless recognizes that his § 2254 habeas petition was not
timely filed, but reasserts the same arguments in support of equitable tolling that
he advanced before the district court. Upon review of the report and
recommendation of the magistrate judge and district court order, both of which
are thorough and well-stated, along with Wanless’ appellate filings and the entire
record on appeal, we find nothing to add to what is already set out in the district
court’s order and magistrate’s report and recommendation. In particular, this
court notes that the district court’s conclusion that Wanless failed to present any
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extraordinary circumstance justifying equitable tolling is not reasonably debatable
among jurists of reason, subject to a different resolution on appeal, or deserving
of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
Accordingly, Wanless has not made a substantial showing of the denial of a
constitutional right and is not entitled to a COA. See 28 U.S.C. § 2253(c)(2).
Wanless’ request for a COA is DENIED for substantially those reasons set
forth in the magistrate judge’s report and recommendation dated July 26, 1999,
and district court’s order dated November 19, 1999. Wanless’ request to proceed
in forma pauperis on appeal is DENIED as moot in light of his payment of the
filing fee in full upon initiation of this appeal. This appeal is hereby
DISMISSED.
ENTERED FOR THE COURT:
Michael E. Murphy
Circuit Judge
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Wanless v. Kaiser
Combined Opinion